HLO made changes to this 2010 report accidentally, when working on the 2011 report, and those changes
haven’t been “undone.” There is a correct 2010 report posted to EAB’s website, that could be saved over
State of Oregon
Employment Appeals Board
Performance Year 2011
By: H. L. Owens, Chair
This report is prepared for historical and planning purposes and is
based on generally available information. For continuity and ease of
comparison, it is organized just as annual reports from previous years
are organized, and contains some of the same information, particularly
in the sections on organizational structure and funding.
The Oregon Legislative Assembly created EAB in the Employment
Department in 1959 (ORS 657.685) to review contested
unemployment insurance claim decisions issued by what is now the
Office of Administrative Hearings (OAH).1
Before 1959, Oregon’s unemployment and workers compensation
programs were administered by a three-member commission acting
as both the State Unemployment Compensation Commission (SUCC)
and the State Industrial Accident Commission (SIAC). The SUCC was
responsible for reviewing contested hearing decisions on
unemployment insurance claims. EAB was created to assume that
responsibility, simplify the appeal process, and speed resolution of
EAB is a quasi-judicial agency of the Employment Department,
consisting of three board members appointed by the Governor to four-
year terms, four legal staff, and two legal secretaries. To
accommodate the increased workload caused by the 2007 economic
recession, EAB hired temporary legal staff (1) in July 2009. That
temporary position was replaced by a limited duration legal staff
position in January 2010. In March 2011, the individual in limited
duration position replaced a retiring member of the permanent staff,
and a part-time temporary (former Board member Christine Chute)
was hired. During the 2011 Performance Year (April 1, 2010 through
March 31, 2011), EAB again broke a lifetime (i.e., the 51 years of
EAB’s existence) record, issuing 4,338 decisions (up 15% from the
previous performance year’s 3,778 decisions) (all claim types).
Review of EAB decisions is by petition for judicial review to the Court
1959 OR Laws c. 583, s. 12, was signed into law on May 25, 1959, effective July 1,
EAB is part of Oregon’s Unemployment Insurance (UI) program, which
provides temporary, partial wage replacement income to workers who
are determined to be unemployed through no fault of their own. The
program is funded through a tax on employers that is based, in part,
on the individual employer’s experience with UI claims.
Oregon’s UI claims determination process has three levels. At the first
level, an authorized representative of the Director makes an
administrative decision on a claim for benefits based on information
available. The case moves to the second level when a party to the
initial determination requests a hearing on the Department’s decision.
At that point, the Department becomes a party to the case, the
hearing request is referred to OAH, and an ALJ is assigned to conduct
a contested case proceeding. Those proceedings usually, but not
always, include a telephone hearing. The ALJ’s decision is final unless
one of the parties files an application for review with EAB, at which
point the case moves to EAB for a de novo review of the record, which
is the third level of the determination process.2
EAB’s liason to the Governor’s Office is the Governor’s labor policy
advisor. EAB is on the Department of Administrative Services (DAS)
“Small Agency Heads” mailing list, and invited to attend their
approximately quarterly informational meetings. EAB’s “Program Area
Leader” at the Department is its Deputy Director. Interestingly, the
Department does not consider EAB to be part of the UI program. The
Department’s organization chart3 depicts EAB as connected to the
Director’s Office, and only the Director’s Office, by a dotted line. Nor
does the Department consider OAH part of the UI program, even
though UI cases make up the bulk of OAH’s caseload. However, the
Chief ALJ is a member of the Department’s “Executive Team”, and
Before 2000, hearings on unemployment insurance claims were conducted by
OED’s hearing officers. In 2000, the Oregon Legislative Assembly created a central
panel of hearings officers and made the panel responsible for conducting contested
case proceedings on behalf of numerous state agencies, OED among them. In 2003,
the central panel was renamed the Office of Administrative Hearings. Then, as now,
the majority of hearing requests processed by OAH are on UI benefits
determinations. According to DOL statistics, OAH issued 29,971 UI decisions in PY
2011 up ~20% from 24,675 UI decisions in PY 2010, which was up ~20% from
20,704 UI decisions in PY 2009.
http://www.workforcesecurity.doleta.gov/unemploy/btq.asp. These figures include
dismissals and “direct review” decisions (decisions based on parties’ written
requests). OAH does not publish data showing what percent of its decisions were
decided on procedural grounds, and what percent on substantive grounds.
ED PUB 11 (0111).
participates in the Department’s policy and budgetary discussions,
strategic planning processes, legislative processes, etc.
EAB’s 2009-2011 total budget is $1,845,408, about ninety percent of
which is salary and benefits, and the remainder is network and
government services, including rent, phones, equipment and supplies.4
The Department pays the cost of EAB’s administration from federal
funds according to the U.S. Department of Labor’s (USDOL) “Resource
Justification Model”, or RJM, which focuses on the relative efficiency of
states in performing various functions within their UI programs.
USDOL fully funds a function only if the state is in the top ten for
efficiency for that function. Efficiency is measured in minutes per unit,
or MPU, where the “minutes” are the time spent by staff and the “unit”
is a final UI decision. The units comprise the “workload” for a given
period.5 All of EAB staff time is allocated to the “appeals function.”6
Transcript and translation costs are converted to a time value and
allocated to the “appeals function”, along with the time spent by OAH
and UI Division staff on UI hearings.
According to the RJM, Oregon performed above the national average in
the appeals function, as measured by MPUs, in federal fiscal year (FFY)
2009 (October 1, 2008 through September 30, 2009), with 238 MPU
for FFY 20097, against a national average of 260.389. 8 In FFY 2008,
EAB’s 2007-2009 budget was $1,807,873, of which $1,758,601 was actually spent.
EAB’s 2005-2007 budget was $1,696,277, of which $1,637,856 was actually spent.
EAB’s 2003-2005 budget was $1,608,050, of which $1,570,877 was actually spent.
EAB issues final decisions in other types of cases, but USDOL does not count those
decisions as part of the UI workload for purposes of the MPU calculation.
Time is allocated when staff complete electronic “time cards” and assign time to
one or more function codes.
Jboston/UI-Team/OAH/0210 Appeals report, rev. 5/28/2010.
Unemployment Insurance Program Letter 29-09, Table 4C, average of unadjusted
average MPU (which is itself an average of each state’s FY 2006, 2007 and 2008
MPUs) for 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.
The Department calculated Oregon’s appeals MPU for FFY to be 238 (jboston/UI-
Team/OAH/0210 Appeals report).
Oregon measured 300 MPU in appeals. 9 The increased “efficiency” is
entirely a function of the increased workload. In non-recessionary
years, Oregon has had to supplement the federal UI administration
grant in order to fund UI hearings and appeals administration.
Whether that is the case during this recession is not known. The
Department is responsible under ORS 657.685 to provide EAB “with
such staff as is required by the workload, subject to budgetary
limitations.” ORS 657.675. EAB is not included in the Department’s
EAB Review of OAH Decisions
In Performance Year 2011, (April 1, 2010 through March 31, 2011)
EAB issued 4,338 decision (up from 3,778 decisions in PY 2010, and
from 2,934 decisions in PY 2009).10 Two hundred ninety of those
decisions dismissed the application for review as untimely. Of the
4,048 remaining, EAB adopted only 8, or less than 1% of the hearing
decisions. EAB modified, reversed, or reversed and remanded 683, or
The Department sought review of 5 hearing decisions issued in PY
2010. EAB reversed one hearing decision only.
According to USDOL statistics, Oregon spent an average of 3.8 hours per UI
decision in FFY 2009 (down from 4.9 in FY 2008), or 231 MPU (down from 290 in FY
2008). Adding the time value of translations, transcriptions and “other”, brings the
total to 238 MPU. EAB was responsible for 31 minutes, or 13.1%, of that total.
(Total EAB staff working hours (14,890) x 60 minutes, divided by the total workload
(25,013 OAH UI decisions + 3,601 EAB UI decisions)). Interestingly, the UI Division
of the Department was responsible, or at least billed time, for 22 minutes, or 8.2%
of the total MPUs in the appeals function, despite the fact that it makes no
appearance in the vast majority of contested UI claims determinations.
All counted decisions, all claim types; not just the claim type that DOL designates
Court of Appeals Review of EAB Decisions
Frequency and Disposition of Petitions for Judicial Review in PY
One hundred forty-two petitions for judicial review were filed during PY
2011, compared to 136 during PY 2010, and 104 during PY 2009. As
of March 31, 2011, there were 118 petitions on EAB decisions pending
disposition at the Court of Appeals.
In PY 2011, the Court of Appeals disposed of 133 petitions for judicial
review of EAB decisions. The Court reversed 6 decisions (5%),
affirmed 44 (33%), and dismissed the petition in 83 (62%).12 Of the
50 EAB decisions that were reviewed, 88% were affirmed. The
Supreme Court reversed one Court of Appeals decision affirming EAB’s
PY 2006: 64
PY 2007: 62
PY 2008: 64
PY 2009: 72
PY 2010: 123
PY 2011: 133
EAB has records of 550 dispositions since 2004. The Court reversed
15 decisions (3%), affirmed 147 (27%), and dismissed the petition in
388 (71%). Of the 163 EAB decisions that were reviewed, 90% were
USDOL Core Performance Measures: Timeliness
The USDOL standard for acceptable performance is for EAB to issue a
decision within 40 days after the application for review is filed. DOL
measured performance according to the average age of pending cases.
During PY 2010, the average age of EAB’s pending cases ranged
Appeal from an EAB decision is by petition for judicial review to the Court of
Appeals. The petition must be filed within 30 days after service of EAB’s decision. A
filing fee of approximately $200 is required, although parties may request to have
the fee waived or deferred. OED has not filed a petition for judicial review of an EAB
decision since 2002 (Employment Department v. Clark, 187 Or App 431 (2003)), and
generally has waived appearance as a respondent when another party filed a
See Table 4, attached.
between 12 and 23 days, resulting in an average for the year of 18
days, approximately 3 days more than in PY 2009.13 Still, according to
this measure, for each month of PY 2010, EAB ranked in the top 10 of
the nation’s higher authority appeals bodies.14
Despite the increase, this year’s annual average is an improvement on
PY 2006’s average of 25.6 days, especially considering that EAB’s PY
2010 workload represents an increase of approximately 66% (1,504
cases) over PY 2008.
Annual Performance Progress Reports: OED KPM # 11
Prior to PY 2006, USDOL measured higher authority appeals
performance according to a time lapse standard that required 50% of
EAB’s decisions to be issued within 45 days, and 80% within 75 days.
The Department continues to use the time lapse standard for its Key
Performance Measure (KPM) presently No. 11, formerly No. 14.15
During the 2007-2009 biennium, it was expected that 70 to 75% of
EAB’s decisions would be issued within 45 days of the date the
application for review was filed. EAB exceeded that measure during PY
2010, each month ranging between 87.4% (February ‘10) and 100%
(April, May, July, August, October, November and December 2009).
See http://www.workforcesecurity.doleta.gov/unemploy/ranking.asp. DOL
statistics are based on figures reported by the Department.
See Table 5, attached.
Since 1993, state agencies have been required by statute to review their
performance with the legislature. The review takes place during the budget
development process, using the Annual Performance Progress Report (APPR) as the
medium. Agencies also use the APPR in their presentations to the Joint Committee
on Ways and Means. Although EAB is a state agency as defined by ORS 291.002, its
budget, by statute, has always been included in, and thus presented to the
legislature with, the Department’s budget, by its Director or her designee. As a
practical matter, this arrangement necessitates that the Department, rather than
EAB, report to the legislature concerning EAB’s performance. Thus EAB may “own”
KPM #11, in the sense that EAB is responsible for the output measured. However,
the measure itself, as well as its targets, historically have been selected, analyzed,
commented upon and presented in the APPR by the Department, with little, if any,
input from EAB.
Cost-control and Efficiency Measures
Affirming Without Opinion
In 2008, in anticipation of the recessionary workload, EAB developed
criteria and protocols for affirming certain hearing decisions without
issuing a written opinion. EAB issued its first “awop” (i.e., affirmed
without opinion) decisions in February 2009, when the workload rose
above 300 pending cases.
“Awopping” allows EAB to continue to issue decisions promptly, or at
least within federally mandated time limits, without adding staff or
while newly-hired staff complete training, whenever there is a spike in
the workload. A case is considered a candidate for “awopping” when,
among other criteria, the applicable law is well-settled, and the
application of the law to the facts is uncomplicated. Generally, EAB
will not “awop” a hearing decision when a written opinion might be
instructive for the Department or OAH. In PY 2010, EAB “awopped”
1,426 hearing decisions, or approximately 38% of its workload.
The disadvantages of “awopping” include an increased risk of error of
the sort that only a written opinion is likely to expose, and the need to
monitor and sometimes withdraw for purposes of reconsideration
decisions that become the subject of petitions for judicial review. In
the latter case, attorney fees must be incurred and offset against other
savings. Thus far, however, the advantages of “awopping” far
outweigh the disadvantages. Of the 1,426 “awops” issued in PY 2010,
EAB withdrew only three for reconsideration.16
Generally, the hearing record on review includes a transcript or digital
recording of a hearing. Transcripts cost a flat $2 per page, or $.08 per
line of type. During the 2003-2005 biennium, the UI program spent
$208,000 for transcripts, or $8,667 per month. During the 2005-2007
biennium, the UI program spent $328,576 for transcripts, or $13,691
per month. During the 2007-2009 biennium, the UI program spent
$267,012, or an average of $12,715 per month. Most of the reduction
in cost between the ’05-’07 and ’07-’09 bienniums was the result of
active efforts to reduce the average size of transcripts. In PY 2010,
(Linda E. Stamatis [Employment Appeals Board, 09-AB-1799, June 8, 2009][no
change in outcome]; Bret A. Donovan [Employment Appeals Board, 09-AB-2628,
August 14, 2009][reversing EAB’s original decision]; Jason Chase [Employment
Appeals Board, 09-AB-3498, November 14, 2009][reversing EAB’s original
the average transcript size was 28 pages, down from 32 pages in PY
2008, and cost $55.55, down from $64.94 in PY 2008.17
In 2006, EAB implemented changes in its rules and procedures
designed to limit postage costs.18 Of the $16,456 allocated for
postage in the 2005-2007 biennium, EAB spent only $9,966. EAB
exceeded its 2007-2009 limitation of $8,400 by $752, but was within
its 2009-2011 biennium-to-date limitation (also $8,400, despite the
increased workload) as of March 31, 2010.
Administrative or “direct” review
In 2007, OAH implemented a “direct” review process for late requests
for hearing and reopen requests. The direct review process is a
summary proceeding that may, at an ALJ’s discretion, also include a
telephone hearing. The primary purpose of the direct review process
is to speed up the hearings and review process by reducing the
number of telephone hearings per referral to OAH, and reduce the
length and number of telephone hearings in cases involving late
requests for hearing and reopen requests. When EAB reviews a direct
review case in which a telephone hearing was conducted, EAB reviews
only the audio record of the hearing. This further reduces transcript
costs. In PY 2010, EAB reviewed 543 direct review decisions, up 36%
(144 cases) from PY 2009. Of those, hearings were conducted in 22%
(118 cases), up from 12% (49 cases) in PY 2009. It is estimated that,
in PY 2010, the direct review process saved approximately $30,000 in
Process and Efficiency Impairments
Incomplete and delayed hearing records
EAB’s essential function is the review of hearing records. Usually, the
hearing record consists of a file of printed and original documents, and
a transcript of the hearing. When an application for review is filed,
OAH is responsible for creating the hearing record, and transmitting it
to EAB. As noted in prior annual reports, EAB has had difficulty
In PY 2008, EAB began receiving, reviewing and providing the transcripts in
electronic format, and providing transcripts to parties only upon request. See Table
USDOL ceased reimbursement for postage effective October 1, 2007.
PY 2010: (543 cases)$55.44 per case average = $30,000; PY 2009: (399
cases)$57.50 per case average = $22,943; PY 2008: (374 cases – 13
transcripts)$64 per case average = $23,104.
obtaining complete hearing records since July 2005, when OAH moved
out of Central Office. In October 2006, in the absence of any
meaningful response to the problem from OAH, EAB began issuing a
“Periodic Numbers Report” (PNR), listing specific problems by case,
reference number, and problem type.
Based on data reflected in the PNRs for PY 2010, the delays in the
receipt of transcripts and files reported last year are continuing,
although the increased workload has absorbed some of their negative
impact.20 As EAB’s pending case load decreases, the delays will again
impede EAB’s ability to perform its essential function. In the
meantime, valuable EAB staff hours must be spent monitoring OAH’s
performance because OAH will not do so, and there is no other
mechanism for holding OAH to account for delays.
Data validation, information security, and business continuity
In 2006 EAB asked for support from the Department’s Information
Technology Services section (ITS) to identify and correct flaws in EAB’s
case-tracking (mainframe database) system. Over the years, the
2006 request became known as the “1-2-4 1068” which is how it was
referred to in last year’s annual report. PY 2010 saw renewed resolve
to attend to the 1-2-4 1068, now known as Service Request 62 (SR
62), but no actual progress. As noted in last year’s annual report,
until the project is completed, the flaws in EAB’s case-tracking system
require numerous “workarounds” and impair EAB’s ability to operate
efficiently. EAB staff expended more than 100 hours on data
validation, information security, and business continuity issues in PY
2010, which is a lot considering that EAB staff are not programmers,
and the time was spent attempting to secure assistance from another
section of our own Department.
As in previous years, EAB was not included in the Department’s 2010
business continuity (disaster) planning, although OAH was. Nor was
EAB included in the Department’s 2011-2013 Strategic Planning,
although OAH was. Among the Department’s goals and initiatives are
“Provide services in an effective and efficient manner”, “Leverage tools
and infrastructure that support organizational flexibility”, “Create an
environment for our staff to grow”, “Be a leader in the development,
use, and sharing of quality information”, “Respond to the unique
information needs of our customers and partners”, and “Leverage new
EAB reviews cases on a first filed, first reviewed basis, so the larger the pending
caseload, the longer it takes the Board to reach new cases. That lessens the impact
of OAH’s delays on EAB’s workflow.
and emerging technologies to improve our information delivery.”21
These are worthy goals. However, if the Department has resources to
hire staff to support the ITS and UI sections in “evaluat[ing] and
implement[ing] appropriate mobile applications and social networking
media to provide customer information and services”, it must surely
have the resources to provide EAB the information and services it
requires to carry out its statutory obligations.22
Vision, communication, training, and dispute resolution
In PY 2010, as in PY 2009 and every year for the past 50, no single
position, task force, committee, or workgroup was charged with the
responsibility to ensure that the adjudication process was fair and
efficient across all three levels (the UI Division, OAH and EAB). The
resulting lack of leadership, common purpose, and shared vision in
program administration impaired, and continues to impair, a process
that is increasingly unnecessarily complicated, and arbitrary in the
results it produces.
A 2008 Department study of OAH commented that “general
communication activities” between OAH and UI staff are too limited,
and recommended expanding direct communication between OAH and
the UI Division for the purpose of addressing “questions on
administrative rule interpretation, appeals processes and related
issues affecting UI policy and operations staff and OAH.”23 As
observed in EAB’s annual reports for the past two performance years,
that same lack of communication exists with respect to EAB staff;
communication between EAB and UI staff, as well as EAB and OAH
staff, is too limited, and direct, regular communication between the UI
Division, OAH and EAB is needed to address questions of
administrative rule interpretation, appeals processes and related
issues affecting UI policy and operations staff, OAH and EAB.
Previous annual reports have observed that the UI Division, OAH and
EAB staff and customers suffer from the absence of any inter-section
dispute resolution process. While the Department’s failure in this
regard may be consistent with its view that OAH and EAB are not part
of the UI program, it is not consistent with the interests of Oregonians
2011-2013 OED Strategic Plan – Goals Draft 2.1.
Id. After the close of PY 2010, ITS hired a contractor at EAB’s expense, to provide
EAB support on SR 62.
Implementation of an Unemployment Insurance Panel and other Staff Organization
and Budget Control Issues, Draft Revised April 2008 at 16-17 (Study of OAH).
in a fair and efficient claims determination process. For example,
during the 2009 legislative session, the Department undertook
unilaterally to secure an amendment to ORS 657.270 that created dual
processes for obtaining a new hearing at both OAH and EAB, in the
mistaken belief that such was required by federal regulation.
Previously, a party who failed to appear at a hearing could seek a new
hearing, as well as a review of the hearing decision, with an
application for review to EAB.24 The Department, however, considered
it necessary for parties to be allowed to apply for a new hearing at
OAH as well. Accordingly, ORS 657.270 now allows parties to apply
for a new hearing, simultaneously, with both OAH and EAB. As a
consequence, OAH and EAB staff must continually monitor their
respective caseloads so that EAB can dismiss cases that are continuing
at OAH after the hearing decision has issued and an application for
review has been filed, in order to avoid the risk of inconsistent results.
The additional process creates confusion, delay, and affords the party
seeking relief no advantage, given that the requests must be made in
writing to both tribunals, and EAB has final authority over the
EAB’s customer satisfaction surveys indicate that the public, most of
them Oregonians, do not distinguish between the UI Division, OAH,
and EAB.25 To the parties, we are all just one big claims determination
process, and, for many people, the process is seriously flawed,
notwithstanding that any given “function” of the program might
measure within the U.S. Department of Labor’s acceptable levels of
performance. Given that the Department is the administrative body
responsible for administering the Unemployment Insurance Program, it
is incumbent on the Department to exercise that authority and engage
the UI Division, OAH and EAB in identifying, owning, and repairing the
weaknesses in the UI claims determination process, of which the
“appeals function” is a crucial part.
Only about 8% of the timely applications for review filed in calendar 2009 were
filed by parties who failed to appear at the hearing. However, it is not the number of
cases, so much as the need to monitor, and the parties’ confusion, that creates the
Based on 25 responses to surveys included with each of 351 decisions issued in